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This Week's Tip: Cell Phone Use, Driving Distractions, and Employer Concerns
Published by Personnel Policy Service, Inc.
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This Week's Tip: Cell Phone Use, Driving Distractions, and Employer
Concerns
A car accident related to "driver distraction" (think cell phone use or
changing radio stations) can have extra implications for employer liability,
if your employee was conducting company business at the time.
Consider four steps you can take to help reduce your risk exposure.
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This Week's Tip: Cell Phone Use, Driving Distractions, and Employer
Concerns
It's no surprise. Cell phone use while driving can contribute to
automobile accidents. (If you've ever seen a driver, phone in hand,
cruise carelessly thorough a red light, or have yourself fumbled while
dialing a number, you know this is true.) This byproduct of the
"Electronic Age" also has caught the attention of employers and lawyers,
thanks to several high-profile lawsuits against employers for injuries
caused by employees who were allegedly driving while conducting
business on cell phones.
What you may not realize, however, is that driver cell phone use is only
the proverbial tip of the distracted driving iceberg. Any distraction that
takes your employee's attention away from driving has the potential to
cause an accident that your organization could be liable for.
You can help prevent the potential for accidents, and for liability, by
establishing a clear policy addressing all forms of distracted driving, not
just cell phone use, and by educating employees about the dangers of
inattentiveness behind the wheel.
Changing Radio Stations Causes More Accidents
As noted above, driver cell phone use may be the least of your worries.
According to a 2001 study by the University of North Carolina's (UNC)
Highway Safety Research Center, distracted driving contributes to some
284,000 serious car crashes a year. The UNC researchers examined
data on approximately 5,000 crashes to determine which distractions had
the biggest impact on these accidents.
Of the specific distractions identified as contributing to these accidents,
cell phone use was indicated in only 1.5% of studied accidents. Ranking
well above cell phone use was adjusting the radio, cassette, or CD
player (11.4% of these accidents); adjusting climate controls (2.8%); and
eating or drinking (1.7%). Interestingly, the number one cited distraction
(29.4%) was a person, object, or event outside of the vehicle.
An August 2003 study issued by the American Automobile Association
Foundation for Traffic Safety (and performed by the UNC Highway
Safety Research Center) further reinforces that cell phone use is not the
primary driver distraction. Top distractions in that study included
reaching and leaning for objects in the car, manipulating music and audio
controls, and talking with passengers. Cell phone use ranked eighth out
of nine identified distractions.
The Basis for Liability
Despite these studies, cell phone use and car accidents have still
generated the most news coverage and, subsequently, concern about
employer liability. Several high-stakes cases show that employers may
be vulnerable to lawsuits if their employees are involved in car accidents
while using cell phones.
-- A law firm is facing a $30 million wrongful death suit after one of its
attorneys struck and killed a 15-year-old girl walking along a highway.
News reports indicate that the attorney was talking to a former coworker
on a hand-held cell phone when the accident occurred, but the plaintiffs
allege she was conducting business.
-- Smith Barney, the financial services firm, paid $500,000 in 1999 to
settle a claim by the family of a motorcyclist who was killed by an
employee using a cell phone when he ran a red light. It is unclear in this
case whether an actual judgment would have been assessed against the
company based on business cell phone use. The employee claimed he
was trying to call a client, but phone records showed only a call to a
restaurant.
In cases like these, the legal doctrine of "respondeat superior" generally
is applied. Under this principle, an employer is liable if the employee
was acting within the scope of his duties or in the furtherance of the
employer's interests when he caused the accident. So, for example, if
an employee runs a red light and hits another vehicle while driving from
his office to a client meeting, your organization may be liable.
One new element that cell phone use brings to the distraction equation is
that an otherwise personal drive can become business time, if the phone
is used for business purposes. Thus, if your employee causes an
accident while conducting business on a cell phone, even if he is driving
his kids to a soccer game, you could be liable for the injuries or death of
any third party involved.
You also may be responsible for the employee's own injuries caused by
distracted driving. Under most state workers' compensation laws,
employers generally will be liable for employee injuries incurred while
driving on business, just as they are liable for any other work-related
injuries.
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State and Local Regulation of Driving Distractions Aside from the liability discussed above, there are no federal laws specifically prohibiting the use of cell phones while driving, and only a few states and localities currently address cell phone use and other distractions. These laws are aimed only at drivers, however, and do not apply any special liability to employers. For example, New York requires the use of hands-free devices if cell phones are used while driving. And, New Hampshire imposes fines on drivers who operate vehicles recklessly or negligently, which may be interpreted to include driving while talking on cell phones, eating, or reading. Steps to Control Exposure and Public Concern Although the number of lawsuits involving employer liability for car accidents caused by cell phone use and other driving distractions is still relatively low, the increase in public awareness of distracted driving should still be on your radar screen. In addition to potentially causing a real human tragedy and corporate liability, these accidents can also result in higher insurance premiums and property damage. To control these costs and potential liability, therefore, you should consider four proactive steps to address your employees' driving habits and the need to avoid potentially dangerous situations. These steps include: 1. Implement a written policy addressing distracted driving. The degree of caution you exercise will depend on the nature of your organization's business and its tolerance for risk. The most narrow or conservative policy is one that specifically prohibits using cell phones or engaging in any other unnecessary distractions while driving. Employers that need more flexibility than the above (say, because employees must be in constant contact) should choose a less restrictive option. For example, you can require employees to exercise due diligence to control distractions, such as cell phone use while driving, without entirely banning them. This less restrictive option, however, provides a reduced level of accident protection. Accordingly, you should weigh your realistic business needs against the potential risks, before determining how restrictive your policy should be. 2. Train employees about the dangers of distracted driving. To help them make the distinction between appropriate and inappropriate driving behavior, spell out the dangers of distracted driving and encourage safe habits. 3. Make sure insurance policies are up-to-date and cover employee driving and their personal vehicles. All employees who drive as part of their job should be covered under your business auto insurance, since personal auto insurance typically does not cover business-related incidents. 4. Screen employees who regularly drive on business. At a minimum, you should run a record check with your state Department of Motor Vehicles and make sure their personal insurance coverage is valid. In addition, employees who meet the initial driving screen should be required to report promptly any changes in their driving status. As an added precaution, some employers periodically check the driving records of all current employees who drive on a regular basis. Balance Needs and Risk Whether you are concerned about employee safety, corporate liability, or increased insurance costs, it is clear you should not ignore your employees' driving habits. A written policy that addresses safe driving issues and an educational campaign to improve employee awareness are both good starting points. Try not to overreact to media headlines, however, particularly if cell phones are an integral part of your communications system. From a policy standpoint, you should take a practical approach that weighs your operating needs and culture with an assessment of probable risk exposures. Subscribers to the Personnel Policy Manual and HR Policy Answers on CD can find model policy language prohibiting distracted driving in Automobile Usage, Chapter 402, Comment (5), and a discussion of the topic in note 8. |
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